RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3499-15T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
TIMOTHY RANDALL,
Defendant-Appellant.
________________________________________________________________
Submitted May 23, 2017 – Decided August 1, 2017
Before Judges Yannotti and Sapp-Peterson.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 12-07-1894.
Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Stephen A. Pogany, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief). PER CURIAM
Defendant appeals from a February 1, 2016 order denying his
petition for post-conviction relief (PCR), which defendant filed
following his civil commitment to the Special Treatment Unit,
pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A.
30:4-27.24 to -27.38. We affirm.
An Essex County Grand Jury returned a six-count indictment
against defendant, charging him with first-degree aggravated
sexual assault, N.J.S.A. 2C:14-2(a)(1) (count one); second-degree
endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (counts
two, four, and six); and second-degree sexual assault, N.J.S.A.
2C:14-2(b) (counts three and five).1 Defendant entered into a
negotiated plea agreement in which he agreed to plead guilty to
two counts of endangering the welfare of a minor (counts two and
four). In exchange, the State agreed to recommend a three-year
flat sentence and to dismiss the more serious charges in the
indictment. During the plea colloquy, the Assistant Prosecutor
indicated that as part of the agreement,
[T]he Essex County Prosecutor's Office will also not refer this defendant [] for civil commitment. However, the decision whether a person is civilly committed falls under the Attorney General's Office and I cannot bind
1 In a separate indictment defendant was charged with additional offenses, which are unrelated to this appeal.
2 A-3499-15T4 the Attorney General's Office for whatever they choose to do on their own, as well as the Department of Corrections, who would make that -- who can possibly make that referral, but no referral will come from the Essex County Prosecutor's Office.
When questioned by the court as to whether defendant
understood everything the Assistant Prosecutor placed on the
record up to that point regarding the plea agreement, defendant
requested an opportunity to speak to his lawyer. He then asked the
court about a provision on the plea form regarding violation of
community supervision for life, but, had no questions about the
fact that the Essex County Prosecutor would not refer him for
civil commitment, the Attorney General or Department of
Corrections could make such referral. Defendant then advised the
court that he understood the terms of the plea agreement, had an
opportunity to confer with his attorney regarding the plea
agreement, and was consenting to the terms of the agreement.
When the court reviewed each of the terms of the plea
agreement directly with defendant, it reiterated that "as part of
this agreement, [the Essex County Prosecutor's Office] ha[s]
agreed not make a referral for a civil commitment, to have you
civilly committed." Defendant indicated that he understood. The
court then stated:
However, do you also understand that the decision of the Essex County Prosecutor not
3 A-3499-15T4 to make a request or recommendation for civil commitment does not, in any way, affect the Attorney General's Office or the Department of Corrections from making that referral, if they believe it's necessary or proper?
Defendant responded that he understood, but asked the court,
"[A]re you saying that they can -- they can-- they can do that if
they want to?" In response the court stated:
All I'm saying is that the prosecutor's decision not to make that recommendation doesn't, in any way, affect the possibility or the Attorney General making that application of recommendation or the Department of Corrections if, at some point in time, they think it's appropriate. Do you understand that?
Defendant once again advised the court that he understood and
had no further questions. Before concluding the plea colloquy
with defendant, the court, on three separate occasions, asked
defendant whether he had any other questions and twice explained
to defendant that "[n]ow is the time to ask questions." The only
additional question defendant posed to the court was whether the
court could change its mind regarding the plea agreement. Finally,
in response to the court's question regarding his legal
representation, defendant advised the court that he was satisfied
with the services rendered on his behalf by his attorney.
The court subsequently sentenced defendant, in accordance
with the plea agreement, to a three-year flat term, together with
4 A-3499-15T4 fines, penalties, and community supervision for life. At the time
of sentencing, defendant had approximately 873 days of jail
credits. As such, he was slated for parole several months later.
Prior to defendant's release, the Attorney General's Office
filed a petition for defendant's civil commitment pursuant to the
SVPA. The court granted the petition. On December 9, 2014,
defendant filed a pro se petition, seeking post-conviction relief.
Following appointment of assigned counsel, the court conducted
oral argument on February 1, 2016. On that same date, the court
rendered an oral decision denying the petition.
In reaching its decision, the court reviewed the plea colloquy
transcript of March 11, 2014, and quoted extensively from the
transcript of those proceedings. In particular, the court focused
on the questions posed to defendant and his responses, as well as
questions posed to the court by defendant and the court's
responses. The court was satisfied the record established that
defendant was repeatedly advised of the consequences of pleading
guilty, including the "potential for civil commitment," based upon
an application by the Attorney General or Department of
Corrections. The court concluded defendant failed to offer any
credible evidence demonstrating that his counsel's performance
fell below the objective standard of reasonableness.
5 A-3499-15T4 Because the court determined that petitioner failed to
establish a prima facie case that his attorney's performance fell
below the objective standard of reasonableness, it acknowledged
that it was unnecessary to determine whether defendant had
established a prima facie case that but for counsel's deficient
performance there would have been a different outcome regarding
the plea proceedings. Nonetheless, the court elected to consider
the merits of defendant's petition. The court observed that if
convicted of the charges, at a minimum, defendant faced up to
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RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3499-15T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
TIMOTHY RANDALL,
Defendant-Appellant.
________________________________________________________________
Submitted May 23, 2017 – Decided August 1, 2017
Before Judges Yannotti and Sapp-Peterson.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 12-07-1894.
Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Stephen A. Pogany, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief). PER CURIAM
Defendant appeals from a February 1, 2016 order denying his
petition for post-conviction relief (PCR), which defendant filed
following his civil commitment to the Special Treatment Unit,
pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A.
30:4-27.24 to -27.38. We affirm.
An Essex County Grand Jury returned a six-count indictment
against defendant, charging him with first-degree aggravated
sexual assault, N.J.S.A. 2C:14-2(a)(1) (count one); second-degree
endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (counts
two, four, and six); and second-degree sexual assault, N.J.S.A.
2C:14-2(b) (counts three and five).1 Defendant entered into a
negotiated plea agreement in which he agreed to plead guilty to
two counts of endangering the welfare of a minor (counts two and
four). In exchange, the State agreed to recommend a three-year
flat sentence and to dismiss the more serious charges in the
indictment. During the plea colloquy, the Assistant Prosecutor
indicated that as part of the agreement,
[T]he Essex County Prosecutor's Office will also not refer this defendant [] for civil commitment. However, the decision whether a person is civilly committed falls under the Attorney General's Office and I cannot bind
1 In a separate indictment defendant was charged with additional offenses, which are unrelated to this appeal.
2 A-3499-15T4 the Attorney General's Office for whatever they choose to do on their own, as well as the Department of Corrections, who would make that -- who can possibly make that referral, but no referral will come from the Essex County Prosecutor's Office.
When questioned by the court as to whether defendant
understood everything the Assistant Prosecutor placed on the
record up to that point regarding the plea agreement, defendant
requested an opportunity to speak to his lawyer. He then asked the
court about a provision on the plea form regarding violation of
community supervision for life, but, had no questions about the
fact that the Essex County Prosecutor would not refer him for
civil commitment, the Attorney General or Department of
Corrections could make such referral. Defendant then advised the
court that he understood the terms of the plea agreement, had an
opportunity to confer with his attorney regarding the plea
agreement, and was consenting to the terms of the agreement.
When the court reviewed each of the terms of the plea
agreement directly with defendant, it reiterated that "as part of
this agreement, [the Essex County Prosecutor's Office] ha[s]
agreed not make a referral for a civil commitment, to have you
civilly committed." Defendant indicated that he understood. The
court then stated:
However, do you also understand that the decision of the Essex County Prosecutor not
3 A-3499-15T4 to make a request or recommendation for civil commitment does not, in any way, affect the Attorney General's Office or the Department of Corrections from making that referral, if they believe it's necessary or proper?
Defendant responded that he understood, but asked the court,
"[A]re you saying that they can -- they can-- they can do that if
they want to?" In response the court stated:
All I'm saying is that the prosecutor's decision not to make that recommendation doesn't, in any way, affect the possibility or the Attorney General making that application of recommendation or the Department of Corrections if, at some point in time, they think it's appropriate. Do you understand that?
Defendant once again advised the court that he understood and
had no further questions. Before concluding the plea colloquy
with defendant, the court, on three separate occasions, asked
defendant whether he had any other questions and twice explained
to defendant that "[n]ow is the time to ask questions." The only
additional question defendant posed to the court was whether the
court could change its mind regarding the plea agreement. Finally,
in response to the court's question regarding his legal
representation, defendant advised the court that he was satisfied
with the services rendered on his behalf by his attorney.
The court subsequently sentenced defendant, in accordance
with the plea agreement, to a three-year flat term, together with
4 A-3499-15T4 fines, penalties, and community supervision for life. At the time
of sentencing, defendant had approximately 873 days of jail
credits. As such, he was slated for parole several months later.
Prior to defendant's release, the Attorney General's Office
filed a petition for defendant's civil commitment pursuant to the
SVPA. The court granted the petition. On December 9, 2014,
defendant filed a pro se petition, seeking post-conviction relief.
Following appointment of assigned counsel, the court conducted
oral argument on February 1, 2016. On that same date, the court
rendered an oral decision denying the petition.
In reaching its decision, the court reviewed the plea colloquy
transcript of March 11, 2014, and quoted extensively from the
transcript of those proceedings. In particular, the court focused
on the questions posed to defendant and his responses, as well as
questions posed to the court by defendant and the court's
responses. The court was satisfied the record established that
defendant was repeatedly advised of the consequences of pleading
guilty, including the "potential for civil commitment," based upon
an application by the Attorney General or Department of
Corrections. The court concluded defendant failed to offer any
credible evidence demonstrating that his counsel's performance
fell below the objective standard of reasonableness.
5 A-3499-15T4 Because the court determined that petitioner failed to
establish a prima facie case that his attorney's performance fell
below the objective standard of reasonableness, it acknowledged
that it was unnecessary to determine whether defendant had
established a prima facie case that but for counsel's deficient
performance there would have been a different outcome regarding
the plea proceedings. Nonetheless, the court elected to consider
the merits of defendant's petition. The court observed that if
convicted of the charges, at a minimum, defendant faced up to
twenty years imprisonment on the first count of the indictment
charging him with aggravated sexual assault, as well as the
possibility of an extended term, based upon the nature of the
underlying offenses as well defendant's prior record of
convictions.
The court found that "defendant knowingly and voluntarily
elected to assume the risk of possible civil commitment referral
by either the Attorney General's Office or the Department of
Corrections in return for the extremely generous and favorable
offer of a three-year custodial sentence," and in doing so, "also
avoid[ed] the embarrassment . . . of hearing his three children
testify in court to these horrendous, horrendous acts he allegedly
committed upon them." Finally, the court found that because
defendant failed to establish a prima facie case of ineffective
6 A-3499-15T4 assistance of counsel, he was not entitled to an evidentiary
hearing. The present appeal followed.
On appeal, defendant raises the following points for our
consideration:
POINT I
THE ORDER DENYING [PCR] SHOULD BE REVERSED BECAUSE DEFENDANT ESTABLISHED BY A PREPONDERANCE OF THE EVIDENCE THAT HIS CIVIL COMMITMENT AS A SEXUALLY VIOLENT PREDATOR VIOLATED HIS FOURTEENTH AMENDMENT DUE PROCESS RIGHTS TO BE PROTECTED FROM ENTERING INTO AN ILLUSORY PLEA BARGAIN IN WHICH THE COUNTY PROSECUTOR'S PLEA PROMISES MAY BE NEGATED BY THE STATE ATTORNEY GENERAL.
POINT II THE ORDER DENYING [PCR] SHOULD BE REVERSED AND THE MATTER REMANDED FOR AN EVIDENTIARY HEARING BECAUSE TRIAL COUNSEL'S FAILURE TO ADVISE DEFENDANT THAT HE COULD BE SUBJECT TO A CIVIL COMMITMENT AS A SEXUALLY VIOLENT PREDATOR EVEN THOUGH HE [PLED] GUILTY TO NON-SEXUAL OFFENSES SATISFIED [RULE] 3:22-2 INEFFECTIVE ASSISTANCE OF COUNSEL CRITERIA.
We have considered the arguments advanced by defendant in
light of the record and applicable legal principles. We conclude
defendant's arguments are without sufficient merit to warrant
extensive discussion in a written opinion. R. 2:11-3(e)(2). We
affirm substantially for the reasons expressed by Judge Ciffelli
in his comprehensive February 1, 2016 oral opinion. We add the
following comments.
7 A-3499-15T4 For defendant to obtain relief based on ineffective
assistance grounds, he was obliged to show not only the particular
manner in which counsel's performance was deficient, but also that
the deficiency prejudiced his right to a fair trial. Strickland
v. Washington, 466 U.S. 668, 687, l04 S. Ct. 2052, 2064, 80 L. Ed.
2d 674, 693 (1984); accord State v. Fritz, 105 N.J. 42, 58 (1987).
Both the United States Supreme Court and the New Jersey Supreme
Court have extended the Strickland test to challenges to guilty
pleas based on ineffective assistance of counsel. Lafler v.
Cooper, 566 U.S. 156, 162-63, 132 S. Ct. 1376, 1384-85, 182 L. Ed.
2d 398, 406-07 (2012); Missouri v. Frye, 566 U.S. 134, 140, 132
S. Ct. 1399, 1405, 182 L. Ed. 2d 379, 387 (2012); State v. DiFrisco,
137 N.J. 434, 456-57 (1994). Defendant failed to meet the
standards for post-conviction relief.
Defendant's contention that his plea bargain was "illusory"
is without merit. The representation of the Assistant Prosecutor
that the Essex County Prosecutor's Office would not refer the
matter for defendant's civil commitment could only be viewed as
"illusory" and "misleading" if the Assistant Prosecutor made this
representation knowing that the Essex County Prosecutor was
without authority to independently seek civil commitment of a
defendant. Under the SVPA, the Attorney General may delegate
authority to a county prosecutor to see relief under the SVPA.
8 A-3499-15T4 See N.J.S.A. 30:4-27.26 (expressly stating that the definition of
Attorney General includes "a county prosecutor to whom the Attorney
General has delegated authority under [the SVPA]."). Although no
such delegation occurred in this matter, the prosecutor was not
precluded from seeking such a delegation, but, as part of the plea
agreement declined to do so.
Further, the plea colloquy clearly establishes defendant's
understanding of the terms of the plea agreement and, in
particular, the fact that the Essex County Prosecutor's decision
not to refer defendant for a civil commitment under the SVPA, did
not bind the Attorney General or the Department of Corrections
from seeking such relief.
Moreover, even if the court were to have accepted defendant's
contention that his attorney failed to advise him that he
potentially faced civil commitment pursuant to the SVPA,
notwithstanding the Essex County Prosecutor's representation that
it would not seek such relief, defendant could not satisfy the
second requirement for post-conviction relief, namely, but for
counsel's deficient performance, there would have been a different
outcome in the plea proceedings. The record establishes that both
the Assistant Prosecutor and the court separately placed on the
record that the Essex County Prosecutor's decision not to pursue
a civil commitment was not binding upon the Attorney General or
9 A-3499-15T4 the Department of Corrections. The defendant, more than once
during the proceedings, expressed his understanding of this fact.
Thus, to the extent this fact was not made clear to
defendant by his attorney, such an omission had no prejudicial
impact upon defendant sufficient to warrant post-conviction
relief.
Affirmed.
10 A-3499-15T4